Illegal Interview Questions You Should Never Ask Job Applicants

Every HR pro knows how important it is to avoid illegal interview questions. After all, no one wants to be known as that person who got their company involved in a legal mess.

And while some illegal interview questions are pretty easy to spot, others might not immediately jump out at you as ones to avoid.

The Equal Employment Opportunity Commission, also known as the EEOC, has provided a lot of useful guidance in this area.

Let’s take a look at what federal laws are at play when it comes to staying on the legal side of things with respect to job interviews – and how to make sure you meet all applicable legal requirements.

Illegal interview questions and topics to avoid

A number of federal laws against discrimination protect job seekers from discrimination.

These laws essentially create and define protected classes of people and set legal protections for them. And part of the protection they provide makes certain interview questions to job applicants off limits.

Federal laws to keep in mind during interviews

There’s no question about it: Hiring managers need training to make sure they avoid asking illegal interview questions throughout the hiring process.

There are a number of different federal laws that hiring managers need to know in connection with job candidates and the hiring process. Here are the main ones to be aware of:

• The Age Discrimination in Employment Act (ADEA) bans employment discrimination against people who 40 or older. It applies to all aspects of the employment relationship, including hiring. Put simply, employers can’t discriminate against people 40 or older, including with respect to hiring. In limited circumstances, age can be what is known as a bona fide occupational qualification, making it permissible to discriminate based on age when age is a qualification that is reasonably required for the operation of the employer’s business. But this is a very narrow exception.
• The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals with a disability. This law also applies to all aspects of the employment relationship, including hiring. With respect to disability-related inquiries, three sets of rules apply: one at the pre-employment, pre-offer stage; another at the post-offer, pre-employment stage; and a third at the stage of current employment.
• Title VII of the Civil Rights Act bars employers from discriminating based on race, color, religion, sex and national origin. In addition to gender, the category of “sex” includes sexual orientation and gender identity. The limited bona fide occupational qualification exception may apply under Title VII as well. It’s best to get legal advice before concluding that this exception applies.
• The Genetic Information Nondiscrimination Act (GINA) bans employment discrimination based on genetic information. It prohibits the use of genetic information to make employment decisions. It restricts employers from asking for or requiring genetic information, and it limits the disclosure of genetic information.

It’s also important to remember that state laws addressing civil rights can also impact what interview questions you can and can’t ask job applicants during the interview process.

Examples of Illegal Job Interview Questions

Even an innocent question – if worded incorrectly – can have serious legal repercussions. To prevent these kinds of problems, many employers use carefully pre-screened interview templates with job candidates to make sure that they stay on the right side of the law.

Interview questions About Age

An age-related question is permissible if it is asked to verify that an applicant meets an age-related legal requirement for the job. But generally speaking, questions related to an applicant’s age should be avoided – and those potentially illegal interview questions include much more than the painfully blunt “How old are you?”

Illegal interview questions:

• What year were you born?
• When did you graduate from high school?
• When did you graduate from college?

Ask these legal interview questions instead:

• Do you have a high school diploma or equivalent?
• Do you have a college degree?
• These are the job requirements. Are you able to perform them?

Employers can ask about the age of a job candidate if an age-related limitation is a bona fide occupational qualification that is necessary to the performance of the position’s duties. In these cases, questions about age are legal interview questions – and proof of age can be required, such as in the form of a birth certificate.

For example, an airline may set a maximum age for pilots and defend the maximum age requirement as a bona fide occupational qualification.

A maximum age may also be a bona fide occupational qualification for certain law enforcement personnel positions, such as a police officer or state trooper.

Just as a maximum age can be a bona fide occupational qualification, so can a minimum age. For example, an employer may require that an applicant for a position as a bartender be at least 21 years old.

 The cost of getting it wrong with respect to age-related job interview questions can be steep. For example, in 2019 Google agreed to pay $11 million to settle a claim that alleged age discrimination in hiring based partially on the question “What years did you attend college?”

Interview questions about availability and scheduling

Illegal interview questions

• Can you work on weekends?
• Will you have reliable childcare arrangements?
• Do you need to care for a disabled family member?

The first of these interview questions is a potential problem because it might be viewed as an inquiry designed to reveal the applicant’s religious affiliation. Making hiring decisions based on the answer to the second question relating to family status is a bad idea, and an even worse idea is to present the question only to women. The third question should be avoided at all costs because it is a direct question related to disability. Federal law bans discrimination based on a qualified individual’s relationship or association with a person who has a disability, including family members.

Ask these legal interview questions instead:

• What days and shifts are you able to work?
• Do you have outside commitments that would prevent you from working a scheduled shift?
• These are the shifts you would need to work. Would you be able to work those shifts?

These interview questions adequately enable employers to determine whether the applicant will be able to meet applicable attendance requirements.

Interview questions about arrest records and criminal records

There is no federal law that specifically bans employers from asking applicants about arrest and conviction records. But that doesn’t mean asking these questions is always a good idea.

The EEOC has advised that as a best practice and general rule, employers should not ask applicants about convictions. If these inquiries are made, they should be limited to questions about convictions that are related to the job in question and consistent with business necessity.

Declining to extend a job offer to an applicant based solely on an arrest is not an exclusion that meets this standard. This is because an arrest, by itself, does not prove that criminal conduct has occurred. This is a complicated area, as shown by another layer: The EEOC says it is permissible for employers to make hiring decisions based on the conduct underlying an arrest if that conduct makes the applicant unfit for the job.

If a criminal record screening policy disproportionately screens out a group protected by Title VII, then the practice violates Title VII unless it is job-related and consistent with business necessity. This is called disparate impact liability.

Employers may not treat applicants with similar criminal records differently based on a characteristic that Title VII protects, such as race. For example, an employer may not reject a white applicant with a criminal record and hire an equally qualified Black applicant with a similar criminal record.

Remember: It’s one thing to ask about arrest and conviction records, and it’s another thing to rely on the answers to those questions when making employment decisions. Federal law doesn’t ban the questions, but employers who ask them and then reject an applicant need to be ready to show either 1) the rejection was unrelated to the answer provided, or 2) the answer justified the exclusion because it showed the applicant was not qualified. Focus on the job description and the job’s actual duties to determine how any arrest or conviction relates to the ability to do the job.

It is very important to note that in addition to considerations that are relevant under federal law, dozens of states and more than 100 cities have “ban the box” laws that limit the ability of employers to ask job applicants about arrest and conviction records. These state laws and local ordinances must be taken into account.

Employers should be aware of rules relating to background checks as well. If an employer makes a hiring decision based on a background check, it has consent and notice obligations under a law known as the Fair Credit Reporting Act. If a report is obtained from a company that is in the business of compiling background information, the employer must tell the applicant in writing that it may use the background check information to make a decision and get the applicant’s written permission to get the report.

Interview questions about citizenship

As a general rule, employers may not make hiring decisions based on an applicant’s citizenship status.

Instead of asking about citizenship status, employers should ask applicants if they have the legal right to work in the United States. Employers have the right and obligation to ensure that the applicant is eligible and authorized to work.

As a best practice, employers should not ask applicants about their citizenship status. This is because this question of whether the applicant is a U.S. citizen may lead to a claim that the employer illegally discriminated against the applicant based on their citizenship status.

The Immigration and Nationality Act requires employers to verify the identity and employment eligibility of job applicants. But this information can be obtained without asking about an applicant’s citizenship status.

Sometimes, a question about citizenship status is not only authorized but required. For example, an applicable law or regulation may limit a position to those who have citizenship status. But these situations are the exception, not the rule. When they occur, citizenship is what is known as a bona fide occupational qualification. This essentially means that non-citizenship disqualifies the applicant from the position being sought. The bona fide occupational qualification exception is narrow in scope.

Don’t ask:

Are you a U.S. citizen?

Instead, ask:

Are you authorized to work in the U.S.?

Interview questions about credit

A decision to check an applicant’s credit history can be helpful in determining whether the applicant is suitable for the position. However, there are important rules to follow in this area.

If an employer makes a hiring decision based on a background check, it has consent and notice obligations under a federal law known as the Fair Credit Reporting Act. If a report is obtained from a company that is in the business of compiling background information, the employer must tell the applicant in writing that it may use the background check information to make a decision and get the applicant’s written permission to get the report.

Employers who wish to get a credit report on a job applicant should get the applicant’s written consent before doing so. Be clear with the applicant about what information you are seeking to review. The consent should be obtained on a separate, standalone form.

Some state laws prevent or limit employers from denying applicants employment based on a bad credit score. These states include California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington. In addition, some localities place restrictions on the practice. For example, Chicago and New York City regulate the practice.

Interview questions about disability

Before a job offer is made, employers may not make disability-related inquiries. Once an offer is extended, employers can make disability-related inquiries as long as it does so for all entering employees in the job category at issue. But if the question screens out the applicant, the employer must show that the rejection was job-related and consistent with business necessity.

Don’t ask about an applicant’s medical conditions or medical history before an offer is made.

Remember that illegal pre-employment, pre-offer inquiries include not only those that directly ask about disability but also those that are likely to reveal the existence of a disability.

Illegal interview questions

• Do you have a disability?
• Have you ever filed a claim for workers’ compensation benefits?
• Do you take any prescription drugs?

Ask these legal interview questions instead:

• Are you able to perform the essential functions of the job?
• Are you able to describe or demonstrate how you will perform required job tasks?
• Do you meet all the education and training requirements for this job?

Remember also that job seekers with disabilities may be entitled to reasonable accommodation in connection with the job application and interview process, and hiring managers must be aware of this requirement.

Interview questions about emergency contact information

As a best practice, employers should refrain from asking for emergency contact information before an applicant is hired.

A response to a request for emergency contact information may become the basis for a later claim of illegal discrimination.

Suppose, for example, that an applicant indicates that their emergency contact is their spouse, who is of the same sex. If the applicant is later rejected, they could conceivably premise a claim of sexual orientation discrimination on their response to the question.

It’s better to ask for emergency contact information after the applicant has been hired and as part of the onboarding process.

Make sure to let the new employee know that the emergency contact information will be kept confidential and will be shared only as needed.

Questions about employment history

Employers can generally ask questions about an applicant’s previous job history because the answers to those questions provide relevant and important information about the applicant’s skills and experience. They help employers determine whether job applicants are well qualified for the position being sought and meet job applicable job requirements.

Specific questions about employment history should related to the job requirements for the job the employer is seeking to fill.

But be careful about asking about salary history. Many states and localities ban at least some employers from asking job applicants to provide salary history information.

These state laws include laws in Alabama, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and Washington.

Employers should not ask job applicants any questions about salary history before checking to make sure the questions are legally permissible in their particular jurisdiction.

Questions about family status, marital status and pregnancy

Questions about family status, marital status and pregnancy should be avoided in job interviews.

The EEOC has advised that these questions, including questions about childcare arrangements, are often used to discriminate against women in violation of Title VII.

It is clearly a big mistake to ask these questions only of women. But even if they are presented to all applicants, they may be viewed as evidence of an intent to discriminate against a protected group.

Once a job offer has been made, these questions are fine as long as the answer is needed for insurance purposes or some other legitimate business purpose.

The cost of getting this wrong can be high. For example, in one notable case an upscale retirement community paid $70,000 after a manager asked an applicant when she planned on having another baby.

Questions about financial information

Under federal law, employers are not banned from asking job applicants questions about finances.

However, employers still need to be careful in this area because questions about finances can still lead to trouble and employers must tread carefully in this area.

First, employers may not illegally discriminate when using financial information to make a decision. For example, they may not apply a particular financial requirement differently based on membership in a protected class such as race or sex.

Employers should also make sure that any question about finances is designed to help them accurately identify candidates who are reliable and responsible. Think about it: Why else would you ask these questions?

Employers are asking for trouble if they set a financial requirement that does not help them accurately identify good candidates and disadvantages members of a protected class such as race or national origin.

Another important note: Employers may need to make an exception to a generally applicable financial requirement if an applicant is unable to meet the requirement due to a disability.

Employers who seek financial information via a background check must meet requirements that are set by the Fair Credit Reporting Act. They must get the applicant’s written permission to get the report, and they must tell the applicant in writing that it may use information obtained from the report to make a decision.

The EEOC has advised that “financial information” includes a variety of information, including information relating to:

• Current or past assets
• Credit rating
• Bankruptcy
• Garnishment
• Car ownership
• House rental or ownership
• Charge accounts
• Bank accounts.

Questions about gender, gender identity and sexual orientation

Under a federal law known as Title VII, job seekers are protected from discrimination based on “sex,” which includes gender, gender identity and sexual orientation.

For that reason, it is generally a very bad idea for employers to ask job seekers questions about any of those things. Illegal interview questions generally include questions about gender, gender identity and sexual orientation.

There is an exception to the general rule against asking questions about sex. Specifically, sex can be what is known as a bona fide occupational qualification that is reasonably necessary for the business’s normal operation. For example, sex may be a bona fide occupational qualification for an actor if the role calls for a masculine male. This is a narrow exception, and employers should seek legal advice before concluding that it applies.

Bottom line: Don’t ask sex-related questions unless you have first confirmed that sex is a bona fide occupational qualification for the position being sought.

Questions about genetic information

This one is a hard no: Employers should not ask job applicants for genetic information when making hiring decisions.

A federal law known as the Genetic Information Nondiscrimination Act bans employment discrimination based on genetic information.

Asking applicants questions about their genetic information opens the door to a claim of illegal discrimination under the law.

The definition of “genetic information” is broad. It includes information about an applicant’s genetic tests as well as information about the genetic tests of an applicant’s family members. It also includes information about the manifestation of a disease or disorder in an individual’s family members.

In other words, family medical history is included within the definition.

Here are a few examples of illegal interview questions under GINA:

• Does anyone in your family have heart disease?
• What is your family medical history?
• Have you been tested for predisposition to any medical conditions, disease or illness?

Questions about height and weight

To justify an interview inquiry about height or weight, an employer must explain how the applicant’s height or weight relate to job requirements.

Inquiries about height and weight tend to limit employment opportunities of some protected groups, according to the EEOC.

Employers must also keep in mind that some states and localities have laws specifically addressing height and weight bias.

Best practice: Avoid questions about height and weight unless the information is job-related and is needed to determine whether the applicant is qualified.

Questions about military service

The federal Uniformed Services Employment and Reemployment Rights Act bars discrimination based on a person’s military status or obligations.

Questions about military service are generally permissible as are questions about work experience, but employers must ensure that a question related to military service does not incidentally violate a separate legal prohibition.

For example, a disability-related question is separately barred by the Americans with Disabilities Act, and a question that asks about service dates tends to reveal the applicant’s age. These questions should be avoided.

Questions to avoid:

• What type of discharge did you receive?
• Do you have PTSD?
• What were your dates of service?

Permissible questions:

• What were your military duties?
• What training did you receive?
• What rank did you attain?

Questions about organizations

This is an area that can produce problems for employers. Why? Because the answer to a broad question in this area can easily tend to reveal the applicant’s membership in a class that the law protects. For example, the answer may reveal a religious affiliation. It’s a door to a potential bias claim that there really is no good reason to open.

When asking questions about an applicant’s membership in an organization, it’s best to stick with a narrowly tailored question that asks whether they belong to any organization that is relevant to the job they are seeking. Keep the questions job-related. Questions about prior work experience are fine.

Questions to avoid:

• Are you a member of any religious organization?
• What outside organizations do you belong to?
• Do you belong to any social organization?

Permissible question:

• Are you a member of an organization that relates directly to the skills needed for this job?

Questions about personal information

As a general rule, questions that are likely to elicit personal information from job applicants should be avoided. This is because these questions might later be used as ammunition against you in a discrimination lawsuit.

In addition, they may be viewed suspiciously by applicants and might even discourage them from applying.

To be safe, stick to a basic rule: Only ask questions that are relevant to the applicant’s ability to do the job.

Questions to avoid:

• What pronouns do you use?
• What church do you attend?
• What is your marital status/maiden name?

Questions about race, national origin and ethnicity

Questions about race, national origin and ethnicity generally should be avoided.

However, there are times when an employer might ask about a particular characteristic, such as race, for a legitimate purpose, such as a purpose relating to affirmative action.

Seek legal advice before asking such questions. When they are authorized, it’s best to keep that information separate from information that is used to decide whether the job applicant is a good fit for the job.

Questions about religion and religious affiliation

Questions about religion and religious affiliation generally should be avoided.

If religion is a bona fide occupational qualification, questions about religion may be asked.

A bona fide occupational qualification is a qualification that is reasonably necessary to the normal operation of the business.

For example, a church employee may be required to be a member of the church’s denomination.

This is a narrow exception. Do not assume it applies; instead, seek legal advice to make sure you are in the clear before asking job applicants questions about religion.

Questions to avoid:

• What is your religious affiliation?
• Do you regularly attend religious services?
• Are you able to work on religious holidays?

Permissible questions:

• What days and hours are you available to work?
• Are you able to work on weekends? (If weekend work is required)
• This would be your schedule – would you be able to work it?

Questions about workers’ compensation

Questions about workers’ compensation are to be avoided because they may reveal the existence of a disability.

Don’t ask job applicants about their workers’ compensation history.

Conclusion

Avoiding problematic job interview questions can be tricky, but it’s important to stay on top of legal requirements as we’ve explained.

Looking for even more good information about what makes for a solid interview that unveils your best fit for the job? Then check out these additional resources.

For more insight into effective interview questions, click here.

Want to browse 50 interview questions that might work well for you? Take a look at this.

Some interview questions can reveal a lot about culture fit. Here’s a resource for that.

Have a particular interest in behavioral interview questions? Here’s some information about them.